Ofcom Broadcast Bulletin Issue number 136 1
Contents Introduction 4 Standards cases In Breach Five News at 7 Five, 5 February 2009, 19:00 5 The Alan Titchmarsh Show ITV1, 23 March 2009, 15:00 and 26 March 2009, 15:00 8 The Paul O Grady Show Channel 4, 24 March 2009, 17:00 14 UEFA Champions League Live ITV1, 14 April 2009, 19:30 16 The MySpace Chart MTV Two, February 2009, various dates and times 18 Sponsorship of Dexter FX, May 2009, various dates and times 20 Maranam Muttuppulli Alla Global Tamil Vision, 2 November 2008, 19:00 Vanakathukuriyavarkal Global Tamil Vision, 27 November 2008, 17:10 23 Chat Café, LA Babes, 25 February 2009, 13:00 28 George Galloway Talksport, various dates and times 30 Virgin Media Advertisement, Sci-Fi Channel, 31 January 2009, 15:00 37 Not in Breach Jeni Barnett LBC 97.3FM, 7 January 2009, 14:00 39 Dispatches: The Trouble With Boris Channel 4, 30 March 2009, 20:00 45 2
Fairness & Privacy cases Partly Upheld Complaint by Ms Judith Isherwood on behalf of the Wales Millennium Centre Waterfront, ITV1 Wales, 1 November 2007 48 Not Upheld Complaint by the Wales Millennium Centre Wales Tonight, ITV1 Wales, 2 November 2007 58 Complaint by Mr Matthew Chiappa Police Camera Action, ITV1, 21 July 2008 64 Complaint by Mr Casey Bowen on his own behalf and on behalf of Mr Martin Bowen (deceased) ITV News at Ten, ITV1, 6 August 2008 70 Complaint by Mr Casey Bowen on his own behalf and on behalf of Mr Martin Bowen (deceased) BBC News at One, BBC News at Six, BBC News at Ten, BBC1, 6 August 2008 75 Other programmes not in breach/resolved 81 3
Introduction The Broadcast Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes which broadcasting licensees are required to comply. These include: a) Ofcom s Broadcasting Code ( the Code ) which took effect on 25 July 2005 (with the exception of Rule 10.17 which came into effect on 1 July 2005). This Code is used to assess the compliance of all programmes broadcast on or after 25 July 2005. The Broadcasting Code can be found at http://www.ofcom.org.uk/tv/ifi/codes/bcode/ b) the Code on the Scheduling of Television Advertising ( COSTA ) which came into effect on 1 September 2008 and contains rules on how much advertising and teleshopping may be scheduled in programmes, how many breaks are allowed and when they may be taken. COSTA can be found at http://www.ofcom.org.uk/tv/ifi/codes/code_adv/tacode.pdf. c) other codes and requirements that may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. Links to all these codes can be found at http://www.ofcom.org.uk/tv/ifi/codes/ From time to time adjudications relating to advertising content may appear in the Bulletin in relation to areas of advertising regulation which remain with Ofcom (including the application of statutory sanctions by Ofcom). It is Ofcom policy to state the full language used on air by broadcasters who are the subject of a complaint where it is relevant to the case. Some of the language used in Ofcom Broadcast Bulletins may therefore cause offence. 4
Standards cases In Breach Five News at 7 Five, 5 February 2009, 19:00 Introduction A viewer complained about an item during this edition of Five News at 7, in which a Garmin GPS running watch was reviewed. The complainant considered the tone and nature of the review to be promotional for the watch, that it made unflattering comments about a competitive brand and that Garmin might have had paid for the coverage. Generally, the complainant questioned the appropriateness of a news programme including an item of this nature. Ofcom sought Five s comments under the following Code rules: Rule 10.3 Products and services must not be promoted in programmes Rule 10.4 No undue prominence may be given in any programme to a product or service. Rule 10.5 Product placement is prohibited. We also requested background information about how the watch came to be reviewed and what arrangements to feature it might have been made with the manufacturer or supplier. Response Overall, Five denied that the item was in breach of Rules 10.3 and 10.5 of the Code, but accepted that on balance the item may have been unduly prominent of the watch and therefore in breach of Rule 10.4. Five explained that Five News at 7 had been relaunched at the beginning of 2009, targeting a young male audience. As part of the revamp an ad hoc gadget review feature was introduced. This feature has included reviews of netbooks, video goggles and a mini cinema projector. The format of the review offered a pre-recorded piece followed by a live studio chat with a gadget expert. The broadcaster confirmed that no product is ever featured through agreement with manufacturers and that no valuable consideration was received by Five in return for including the Garmin watch in the programme. After a decision to review runners watches, the production staff selected five possible models, but could obtain only the Garmin and the Timex watches. The Timex was received only after the pre-recorded report had been completed. Also, no expert could be found to discuss the watch in the live studio segment and the reviewing reporter therefore had to fill that role. In respect of the pre-recorded report, Five pointed out that references were made to the watch being chunky and oversized on girly wrists, and that it is complicated to use: the simple functions seem anything but simple. 5
Further, the broadcaster commented, during the live interview it was said that the Garmin watch comes with a substantial price tag: but all of this comes at a price, 279 to be precise ; comes at a price, it s quite expensive ; they are expensive, they are a luxury ; there are other brands that are cheaper ; you get what you pay for with these [GPS watches generally]. Five also drew attention to the Timex watch being referred to by name and shown in close-up on a Timex branded stand. As to editorial justification, Five argued that GPS watches are no longer limited to elite athletes and that, bearing in mind the new target audience of the programme - young males - it considered a feature on running watches was editorially justified. Taking into account all these points, Five did not accept that the item was in breach of Rules 10.3 or 10.5: in Five s view, it was neither promotional, nor did it amount to product placement. However, the broadcaster did accept that some of the references and information may have gone too far when considering this [the undue prominence] rule. Further, Five accepted that the item could have given the impression of external commercial influence on the programme, although there was in fact no influence. Five acknowledged that making the report only when all of the watches intended for review were available would have been preferable. Five said that the requirements of the Code had been discussed in detail with the production staff to avoid any further problems of this sort. Decision Ofcom notes that Five stated that there was no commercial arrangement in place and we saw no evidence that product placement took place. However, Five did recognise that the item may have, on balance, breached the rules on undue prominence (Rule 10.4 of the Code). In Ofcom s view the item clearly gave undue prominence to the Garmin watch. Particularly important in this respect were the manner of the listing of the product s features combined with the positive comparison with the only other watch featured, and the nature of the shot in which the Garmin watch and attachments were set out in sequence on a table, teleshopping-style. Ofcom s guidance to Rule 10.4 states that: Undue prominence may result from: the presence of, or reference to, a product or service (including company names, brand names, logos) in a programme where there is no editorial justification; or the manner in which a product or service (including company names, brand names, logos) appears or is referred to in a programme. The item comprised a pre-recorded report and a live studio discussion about the Garmin watch. Within the report, a number of close-ups of the watch were shown, the watch s on-screen functions were focused on, a heart monitor accessory was shown separately, the watch was shown being used with a wireless laptop link (including a screen shot), and a table-top shot showed the watch surrounded by all its accessories (which appeared one after another). The audio included the following comments in reference to the watch: 6
small but genius invention ; as easy to charge as a mobile phone ; this watch gives you the best of both worlds - I say this watch, generally running watches ; you get what you pay for with these ; there are other brands that are cheaper - there are other models of Garmin that are cheaper - but you got a lot less functions ; with that you re getting GPS, you re getting a speedometer, you re getting a pedometer; but you go for something more basic, like the Timex one you have there in your right hand and you re getting little more than a stopwatch and a light ; and And is it worth it though? I think it s pretty good - you can actually buy them online cheaper than that 279. They are expensive, they are a luxury, but I think they re quite good. In Ofcom s view, the manner in which the watch was described and shown in the programme resulted in undue prominence. Further, the way the watch was demonstrated and the editorial nature of the report appeared to have some features in common with a teleshopping promotion. For instance, the watch and its accessories were displayed on a table-top in a stop-frame sequence in the pre-recorded report. A further factor in judging the context of undue prominence is the nature of the programme in which a report or sequence appears. In this case the review appeared as part of a news programme, part of the discussion provided by the show s news presenter. In such a context viewers would expect more balanced reporting and perceive the content as carrying particular authority. In such circumstances, the audience is likely to expect a more exacting test of undue prominence. As to Rule 10.3 (that prohibits the promotion of products and services in programmes), in Ofcom s view the position of the item was very much more doubtful than argued by Five. Rule 10.3 states that: Products and services must not be promoted in programmes. Broadly, Ofcom determines whether a product or service has been promoted within programmes by assessing both the degree of prominence given and the manner in which the products or services are discussed or referred to. Either can lead to promotion on its own, depending on the extent and emphasis given to the coverage. Although promotion will frequently be active promotion calls to action to purchase and the like that is not, in itself, a necessary condition for breach of the rule. In Ofcom s view this was not only a particularly egregious example of undue prominence, especially as it appeared in a news programme, but the product was featured so heavily and in terms that were essentially uncritical, that the report also breached Rule 10.3. Breach of Rules 10.3 and 10.4 7
In Breach The Alan Titchmarsh Show ITV1, 23 March 2009, 15:00 and 26 March 2009, 15:00 Introduction The Alan Titchmarsh Show is a daily magazine programme that celebrates the best of British, featuring items such as food and wine, fashion, showbiz, music, gardening, current affairs and consumer issues. The programme is broadcast either live or as live. 23 March 2009 During this programme, Alan Titchmarsh interviewed the actress Jane Seymour. Ofcom received a complaint from a viewer who was concerned that the interviewee s jewellery range and clothing range were heavily promoted. Ofcom noted that the interview was prefaced with a montage of clips from Ms Seymour s recent films, and included discussion of her role as the face of the clothing brand CC (Country Casuals), her new book, the availability of her new Open Heart jewellery range at H Samuels and her upcoming films. 26 March 2009 During this programme, Alan Titchmarsh interviewed the actress Stephanie Beacham. Ofcom received a complaint from a viewer who was concerned that Harley Street Skin Care products were promoted in a prominent fashion. Ofcom noted that during the five minute interview, the first half focussed on Ms Beacham s role in Coronation Street, and the second half focussed on appearance and skin care. Both Alan Titchmarsh and the interviewee referred to the Harley Street Skincare products which were displayed on the table in front of them. On one occasion, Alan Titchmarsh also referred to the website www.harleystreetskincare.co.uk. Having viewed the website, Ofcom noted that Ms Beacham had worked with Harley Street Skin Care to create the range of products which were referred to during the programme. Ofcom asked the broadcaster for its comments on both programmes with regards to the following Code Rules: 10.3 Products and services must not be promoted in programmes. This rule does not apply to programme-related material; 10.4 No undue prominence may be given in any programme to a product or service; and 10.5 Product placement is prohibited. Response Channel Television ( Channel TV ), an ITV licence holder, who is responsible for the compliance of the programme on behalf of the ITV network (ITV), responded to Ofcom. 8
The broadcaster told Ofcom that no payment or other valuable consideration had been received by Channel TV or the production company for the inclusion of, or reference to any of the products within either of the programmes. Channel TV said that the interviews were entirely typical of the celebrity spot on any magazine show in that the interviewees discussed career highlights, current ventures and ongoing projects. It added that all celebrities are booked because they, their lifestyle or achievements, are of interest to viewers and no guest is booked in to the The Alan Titchmarsh Show unless they genuinely warrant their appearance by virtue of their public profile. The broadcaster submitted that it retains full editorial control over the guests that are booked and that discussions are held with Channel TV s compliance team as to whether guests who do have a commercial venture to promote are likely to be suitable for the show, given the requirements of [Section] 10 of the Code. It added that potential interviewees have in the past been rejected as they required assurances that their ventures would be referred to in a specific, promotional, manner. Channel TV told Ofcom that it receives many queries from viewers as to where products worn, mentioned by, or associated with the guests may be acquired, which is why the references to the Harley Street Skin Care website and the reference to the availability of the Open Hearts jewellery range at H Samuels were included in these programmes. 23 March 2009 Channel TV said that the interview with Jane Seymour was live and covered subjects such as her acting career, her success in the USA and advice for newcomers to the industry, before the conversation turned to her role with CC. The broadcaster said that at the time, Ms Seymour was making a brief visit to the UK to promote her new book in CC stores and submitted that her description of her role for the company was very brief and restrained to simply stating I wear the clothes. It added that Ms Seymour made no comment on the design, value for money or price of the clothes, but talked about how she had liked the people she had worked with at CC. With regard to Ms Seymour s references to her jewellery collection, Channel TV said that unprompted by Alan Titchmarsh, [she had] briefly mentioned that the selfdesigned necklace she was wearing had recently been licensed by H Samuels and was available in their shops. She did not refer to the fact that an entire range is available at H Samuels. Alan did not press or repeat this point [and] no price information was given. The broadcaster submitted that these brief references to Jane Seymour s commercial ventures were entirely tied into and justified by the editorial context in which they appeared. Channel TV added that there was no undue prominence for either CC or H Samuels and that it did not consider the brief and editorially-relevant mentions of either brand to be unduly promotional, rather that they were entirely typical of the kind of straightforward factual mention appropriate in this kind of interview. 26 March 2009 Channel TV told Ofcom that this programme was broadcast as live. It acknowledged that the set featured products from a skin care range with which Ms Beacham was connected. It added that the placement of the products on the table was approved by 9
the compliance team as the labelling was discreet; the products were not displayed to advantage and they were seen in medium close up only once during the interview. It added that neither Alan Titchmarsh nor Ms Beacham touched or displayed the products at any time and no price information was given. Channel TV added that although Alan Titchmarsh made one very brief mention of the manufacturer s website, this was the only time at which any specific information as to the name of the brand was mentioned. Channel TV submitted that Ms Beacham has always been famous for her good looks and thus the editorial relevance of these brief and non-promotional mentions of her skin care venture is clear. It stated that Ms Beacham discussed many topics before Alan Titchmarsh raised the subject of face creams and argued that it is hard to see how light-hearted statements such as it s better really when you clean your teeth to shove on a bit of cream can be interpreted as unduly promotional for any specific product. The broadcaster added that the products were not afforded any visual prominence, no price information was given and the name of the product range was mentioned only once by Alan Titchmarsh. Decision Ofcom noted the broadcaster s assurances that neither it nor the production company had received payment, or other valuable consideration, for referring to any of the products referred to in either of the programmes and found no evidence that either of the broadcasts was in breach of Rule 10.5 which prohibits product placement. With regards to the promotion of products and services in programmes, it is common for celebrity guests on chat shows and magazine-style programmes to refer to their latest venture. This is often an autobiography or an artistic endeavour, e.g. a film or play, and the reference is usually relatively brief. However, other products or services are also referred to. Accordingly, there is often sufficient editorial justification for the reference to avoid concerns arising under Section Ten of the Code. However, the more commercial the guest s venture and the more prominent the references to it within a programme, the greater the risk that such references may appear to be, in effect, promotional selling messages in breach of Rule 10.3, or unduly prominent in breach of Rule 10.4, or both. It is the broadcaster s responsibility to ensure that any references to commercial products/services are appropriately limited so as not to become unduly prominent. Ofcom acknowledges that unexpected situations may arise in the case of a live broadcast. 23 March 2009 Ofcom noted the following references to CC, made during the interview: AT: JS: AT: JS: You re beautifully clad as ever. Yes. CC. CC. Not 10CC. No, no, just CC. CC. I mean it s so wonderful when you re not in England very often but when you come back and, you know, from the whole window, everywhere you go has these most beautiful photographs that I feel like I have to live up to, you know, me and the CC shops. 10
AT: JS: AT: JS: AT: JS: So it was Country Casuals. Country Casuals. It s now CC. So what s your role with CC? I wear the clothes [looks down at and touches her jacket to indicate that it is from CC] and I m very happy to do it. If Paul Smith s watching out there [winks at the camera] Actually they re fantastic people and also they put my book out there in the stores. I just went out to Bluewater yesterday and I met lots of people at CC. It was great fun. And I was signing my book and I signed lots more, so if anyone wants a signed book go to CC. Ofcom recognises this programme was a live broadcast. However, in our view, the broadcaster did not attempt to draw the conversation away from the subject of Ms Seymour s commercial venture as the face of CC, but in fact, he initiated the conversation by referring to his guest s clothes, You re beautifully clad as ever. Further he sought clarification from her about the brand s full name and asked her to explain her association with the CC brand. This had more in common with a paid for promotion spot than a chat show. While the references to the availability of Ms Seymour s jewellery range at H Samuels were brief and, on balance, appropriately limited, Ofcom was concerned that there was insufficient editorial justification for the manner and frequency of the repeated references to the CC brand during the interview and, as such, the references were judged to be unduly prominent. 26 March 2009 Ofcom noted that the second half of this pre-recorded interview was concerned with Ms Beacham s youthful appearance and how she had been able to achieve this without resorting to surgery. Ofcom was particularly concerned that the skin care products had clearly been set out on the table in front of the presenter and Ms Beacham in advance of the interview, evidencing that the inclusion of references to the products had clearly been planned. Further, Ofcom noted that during the interview, the conversation about skin care was initiated by the interviewer, Alan Titchmarsh, rather than the guest: AT: You re looking so tremendous, not just in your clothes but in your complexion and I notice ladies and gentlemen on the table here what I think in the trade they call unguents ; to which Stephanie Beacham replied: SB: Unguents. Yes. There comes a decision I think when you are at a certain stage and age. Is it the knife or are you going to do something else?! After discussing the fact that Ms Beacham had not undergone surgery to maintain a youthful appearance, the conversation continued in a promotional manner: 11
SB: AT: SB: AT: SB: AT: You need stuff that s going to feed your skin. You need the tripeptides and anti-oxidants and vitamins. You need something that s going to just stop the clock right now and keep your skin plump and dewy and radiant and here s the kit [nods towards the products on the table]. Well it s working for you, I mean it s fab isn t it. Well it actually does work. The other thing is sun damage is dreadful. It ruins our skin. And you ve had enough time in LA to discover that. Twenty-five years. Harleystreetskincare.co.uk. So it ll be on the website all the details. The interview also covered the benefits of using cream on the skin rather than resorting to surgery, for example: SB: AT: It s sort of sad and it s a desperate chase isn t it [surgery]. It s better really when you clean your teeth at night to shove on a bit of cream and when you clean your teeth in the morning to do the same again. Shove your cream on and clean your teeth and she s a good advert for it. Ofcom noted Channel TV s submission that Stephanie Beacham has always been famous for her good looks and thus the editorial relevance of these brief and nonpromotional mentions of her skin care venture is clear. However, in view of the fact that no explanation was given during the interview that the products were Ms Beacham s skin care venture (i.e. that she was involved in a commercial arrangement of some kind with the manufacturer of the products), Ofcom did not accept Channel TV s argument that references to her skin care venture were editorially relevant or editorially justified. Ofcom noted that the product labelling was not clearly visible during the shots of the products on the table and the manufacturer of the products was only mentioned once, however it was a matter of concern that the products were displayed on the table at all as part of the interview. Regardless of the level of detail visible, Ofcom did not consider that there was sufficient editorial justification for this. Ofcom considered that the guest made several claims that the ingredients in the Harley Street Skin Care products would keep skin looking youthful such as: You need something that s going to just stop the clock right now and keep your skin plump and dewy and radiant and here s the kit. She then stated that the skin care range actually does work. In Ofcom s view, these types of endorsements are comparable to the style and manner of those made about products being promoted in a teleshopping broadcast; this is emphasised by the fact that the inclusion of such claims in any broadcast advertisement for such products would require objective substantiation. Ofcom considered that there was insufficient editorial justification for such references during the programme. Further, during the interview, the programme s presenter directed viewers to the Harley Street Skin Care website: Harleystreetskincare.co.uk. So it ll be on the 12
website all the details. Ofcom considered that there was not sufficient editorial justification for this reference. In Ofcom s view, taking account of the nature and type of the references, including the sort of claims normally associated with advertisements, and the lack of any sufficient explanation for their inclusion in the interview, the overall purpose of the references appeared to be promotional. Ofcom found that the combination of the appearance of the products on the table, the nature of the guest s claims about the efficacy and benefits of the products, and the reference to the manufacturer s website were unduly prominent and promotional, in breach of Rules 10.3 and 10.4 of the Code. 23 March 2009: Breach of Rule 10.4 26 March 2009: Breach of Rule 10.3 and 10.4 13
In Breach The Paul O Grady Show Channel 4, 24 March 2009, 17:00 Introduction During the opening section of his weekday chat show, the presenter mentioned that the members of the studio audience were: very nice people but things are starting to sag on some of them He added: But help is supposedly at your hands because for everybody in the audience we ve been given this, and it s a free anti-aging serum called Ageless. A close-up shot was shown of the product being held up to the camera by the presenter, as he joked with the audience and continued: Seriously honestly, it s called Ageless I feel like I m on QVC here! Ageless it reduces fine lines and wrinkles in five minutes [to camera:] you haven t seen this lot! now there s one for every member of the audience you get one of these Ageless and I hope it works Having briefly continued with his typical light-hearted banter, the presenter told the members of the studio audience that they would each receive the product at the end of the show, emphasising once again the product name, Ageless. A viewer claimed that this extended segment [was] in contravention of the Code. We asked Channel 4 for its comments with regard to the following Code Rules: 10.3 Products and services must not be promoted in programmes; 10.4 No undue prominence may be given in any programme to a product or service; and 10.5 Product placement is prohibited. Response The broadcaster said: There was no agreement of any kind between Ageless and Channel 4 or [the production company] about the product being featured or shown in the programme. It added that the Producer decided as part of an on-going joke to exaggerate [the presenter s] age and that of [its] dedicated audience by giving them a pot of anti-aging serum, which suited the presenter, who it said regularly joked about his age and the age of the studio audience. Channel 4 said that the script was carefully drafted not to promote Ageless and only included one verbal reference to the product. It considered the reference to the product and its claims to be editorially justified, as they contextualised the joke and played on the fact that whatever [the presenter] and the audience do they cannot cheat old age as it is an inevitable fact of life. Channel 4 said that it had planned references to apparently, supposedly and let s hope it works to ensure that it was not seen as endorsing Ageless. The broadcaster also noted that the joke ended with the presenter revealing a large exaggerated container of generic (unbranded) anti-aging serum, which indicated how much assistance he would need to look young 14
again. The prop was styled in typical comical fashion to avoid undue prominence to the Ageless brand The broadcaster provided the wording of the intended script, from which it acknowledged that the presenter had deviated in the sheer exuberance of the moment, and unfortunately on a live transmission for comedic purposes in the context of the on-going joke. It was never intended as a conscious name-check or endorsement of a commercial brand. Decision Ofcom noted Channel 4 s assurance that the anti-aging serum had not been featured in the programme as part of a commercial agreement and therefore found no evidence that the broadcast was in breach of Rule 10.5 of the Code. We also noted that the programme was transmitted live, and the presenter deviated from the intended script. Unfortunately, however, this resulted in Ageless being referred to on six occasions and without sufficient editorial justification. Ofcom found these references to be unduly prominent. The broadcast was therefore in breach of Rule 10.4 of the Code. The comic effect of the presenter s performance was clear. However, we noted the following: Six references to Ageless took place in a little over two minutes as opposed to a single passing reference scripted in an intended segment of approximately 45 seconds; While one of the scripted lines was apparently it reduces fine lines and wrinkles in five minutes, the presenter, in fact, stated an advertising claim: it reduces fine lines and wrinkles in five minutes ; and The product s packaging was clearly visible throughout most of the segment, held by the presenter for around 50 seconds and shot in close-up. Ofcom considered that the overall effect of the item was to promote and endorse this commercial product, irrespective of the intention of the broadcaster or the presenter. The cumulative effect of the manner and frequency of these repeated references, including an advertising claim, was that the product appeared to be promoted in the programme, in breach of Rule 10.3 of the Code. Breach of Rules 10.3 and 10.4 15
In Breach UEFA Champions League Live ITV1, 14 April 2009, 19:30 Introduction During the post-match analysis of this UEFA Champions League football match, a viewer was concerned that the presenter referred to a DVD being on general sale: Highlights tonight of this game and the Bayern/Barcelona match on ITV1 at 10:35. Following that, there s another chance for you to see that acclaimed Clough documentary at 11:40. It s also been released on DVD and is now on general sale as well. There was an accompanying full screen visual of the DVD cover and the text: Clough Tonight 11:40pm ITV1. Ofcom asked the broadcaster for its comments with regards to the following Code Rule: 10.3 Products and services must not be promoted in programmes. This rule does not apply to programme-related material. Programme-related material ( PRM ) is defined as products and services that are both directly derived from a specific programme and intended to allow listeners or viewers to benefit fully from, or to interact with, that programme. Response ITV Broadcasting Limited ( ITV Broadcasting ) is responsible for the compliance of the programme on behalf of the ITV network (ITV1). ITV Broadcasting said that the Clough documentary referred to in the programme was an ITV Sport production. It submitted that the documentary about Brian Clough s life and career, particularly the parts about his European Cup triumphs (i.e. the fact that he is the only manager to have won successive European Cup trophies), was of significant interest and relevance to the viewers of this Champions League game. The ITV Sport production team therefore felt that it was appropriate towards the end of the Champions League coverage to remind viewers who may have missed the documentary when it was first broadcast that it was being repeated later that same evening. However, it considered that many viewers who would be interested in watching the programme would be unable to due to its late scheduling at 23:40, and therefore the producers felt it was editorially justified to also refer to the release of the programme on DVD. The broadcaster said that this information (i.e. It s also been released on DVD and is now on general sale as well ) was very brief and general as to its availability. The broadcaster said that it recognised that the Clough DVD did not qualify as programme-related material in this context, because the content was not directly derived from the Champions League programme content. However, it believed the reference to the DVD would have been acceptable as a reference to programme- 16
related material had it followed immediately after the Clough documentary itself, broadcast at 23.40. Nevertheless, the broadcaster suggested that in the context of the Champions League post-match coverage, as a short addition to the commonplace announcement of what was coming up on the channel later that evening, the reference [to the DVD] was sufficiently editorially relevant, brief and informational, rather than directly promotional, so as not to constitute a breach of Rule 10.3. ITV Broadcasting argued that given the relationship in subject matter between the Champions League and a documentary focussing on a football legend intrinsically linked with European football, it did not believe the reference to the DVD should be considered as a breach of the Code. However, it said that it did accept that as a general rule references to DVD releases in programme time always require strong editorial justification, and that it had now given further guidance to the ITV Sport production team on the need for care when making any reference to the availability of such a retail product, particularly where it is not programme related material as such. Decision Rule 10.3 prevents products and services from being promoted in programmes. The only exception to this is where promotions relate to programme-related material. Broadcasters must bear in mind that the ability to promote a product or service as PRM in, or around, programmes is permitted purely by way of exception to the fundamental broadcasting principle that advertising and programme content must be kept separate. For material to qualify as PRM, it must be both directly derived from a specific programme and allow viewers to benefit fully from, or interact with, that programme. Ofcom does not accept that the relationship between the Champions League and an ITV Sport documentary focussing on an individual known for having been the only manager to have won successive European Cup trophies was sufficient editorial justification for referring to the ITV Sport DVD during this particular programme. As acknowledged by ITV Broadcasting, the DVD was not directly derived from this programme, nor did it allow viewers to benefit fully from this programme and as such could not be considered to be PRM. The reference to the DVD was therefore in breach of Rule 10.3. Breach of Rule 10.3 17
In Breach The MySpace Chart MTV Two, February 2009, various dates and times Introduction The MySpace Chart features music videos from a chart compiled from viewer votes. The programme is sponsored by MySpace, a social networking website. Viewers can view videos on MTV Two s MySpace page or on the programme s own website, where they can vote for their favourite video. Ofcom noted that throughout each hour long programme, the programme title, accompanied by the channel logo, remained on-screen constantly. We sought MTV s comments on the references to MySpace under the following Code Rules: 9.4 A sponsor must not influence the content and/or scheduling of a programme in such a way as to impair the responsibility and editorial independence of the broadcaster; and 9.5 There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products Non-promotional references are permitted only where they are editorially justified and incidental. Response The broadcaster, MTV Networks Europe ( MTVNE ), advised that the programme was sponsored by Fox Interactive Media UK Limited (t/a MySpace UK). MTVNE provided Ofcom with a copy of the sponsorship contract. MTVNE stated that the programme was scheduled exclusively by its scheduling department and the times of broadcast were consistent with the times an established chart had been broadcast on MTV Two before the sponsorship arrangement existed. In relation to the on-screen programme title, MTVNE explained that all of its channels identify programmes via a digital on-screen graphic. The font, size and position on screen of this graphic are exactly the same for all channels. It was for this reason that the programme name appeared in the top right hand of the screen during the programme. MTVNE explained that it broadcasts many chart based programmes on its channels and it was important for it to use this navigation graphic to help viewers identify which chart they are watching. On this basis, the broadcaster considered the reference to the programme title throughout the programme was editorially justified. MTVNE said that it believed the on-screen graphic was not promotional for MySpace: it did not incorporate the MySpace logo or corporate font. The broadcaster assured Ofcom that no discussions took place between itself and the sponsor regarding the size, font or positioning of the graphic. The on-air references to the programme title were not a contractual requirement of the sponsorship arrangement. MTVNE advised Ofcom that, pending the outcome of the investigation, it had removed the graphic from screen. 18
Decision We note MTVNE s assurance that the content and scheduling of the programme was not unduly influenced by the sponsorship arrangement: this was supported by the sponsorship contract submitted by the broadcaster. We therefore found the programme not in breach of Rule 9.4. Regarding the references to the sponsor throughout the programme, it is acceptable for broadcasters to integrate a sponsor s name into a programme title as a way of identifying a sponsorship arrangement. However, broadcasters must take extra care, when using the sponsor s name in this way, to avoid giving undue prominence to the sponsor by referencing the programme name excessively during the programme. If references to the programme title occur in the programme, they should be editorially justified and incidental to ensure that the resulting sponsor references comply with the Code. In this case, we noted that MTV uses continuous on-screen graphics to display programme titles in its other programmes to help viewers identify the programme they are watching. However, in Ofcom s view, the inclusion of a commercial reference (i.e. the name of a programme sponsor) within such a graphic changes the nature of this type of on-air reference, and creates the potential for undue prominence. Ofcom did not therefore consider that the regular use of such graphics in other MTV programmes constituted sufficient editorial justification for the continuous display of the sponsor s name, contained in the on-screen graphic, throughout this programme. Ofcom found that this continuous reference to the sponsor was excessive, not incidental and not justified by the editorial requirements of the programme. It was therefore in breach of Rule 9.5 of the Code. Breach of Rule 9.5 19
In Breach Sponsorship of Dexter FX, May 2009, various dates and times Introduction Dexter, a TV cop drama series, was sponsored on the television channel FX by the film Angels & Demons, released in cinemas in May 2009. The sponsor credits shown before the start and after the end of the programmes were 15 seconds long and, other than two brief sequences of voice-over, contained only footage and audio from the film. The voice-overs were Tell the world the truth and Angels & Demons sponsors Dexter on FX HD and FX. The internal bumpers those sponsor credits shown around the internal breaks in the programmes were very brief, two or three seconds, and included only the second of the voice-overs. Both the longer and shorter credits also contained a caption with a website address: www.angels-and-demons-may14.co.uk. Rule 9.13 of the Code requires that: Sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party. In light of this rule, a viewer queried the inclusion of the release date in the film s web address within the sponsor credits. Ofcom was also concerned about the general presentation of the longer credits: that they were essentially no different to promotional trailers for the film in other words, that they closely resembled advertisements. Ofcom requested FX s comments under Rule 9.13. In particular, we sought the licensee s comments on how it believed the content of the longer credits complied with the need for them to be clearly separated from advertising and how the use of the website address and its reference to the release date of the film complied with the need for the credits not to contain advertising messages or calls to action and not encourage the purchase or rental of the products or services of the sponsor or a third party. Response FX accepted that it had got the balance of the credits wrong and that undoubtedly these credits are in breach of Rule 9.13. FX apologised for the breach. Further, the licensee said that it was having the credits re-edited to reduce the film footage considerably and to have the release date removed from the website address contained in the caption. The new credits would replace the old ones immediately. FX said that it had directed relevant staff to the findings and guidance note published by Ofcom in Bulletin 130, so they understand the importance of ensuring that in future sponsorship credits are compliant. In addition, FX stated that it was reviewing 20
its internal systems for clearing sponsorship credits and had included an external compliance consultant in its process for assessing sponsorship credits before transmission. Decision Ofcom noted the licensee s unequivocal acceptance of the breach and acknowledged the very speedy and thorough way in which the matter had been handled. The purpose of Rule 9.13 is to give effect to a requirement of a European Directive which states that: they [sponsored programmes] must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services. (Article 17(1)(c)) This means that sponsor credits on television should not resemble advertisements by, for example, employing advertising techniques such as product claims, availability statements (including outlets, release dates and the like), pricing information and so on. More broadly, as stated in Ofcom s published guidance to Rule 9.13, sponsor credits do not count towards the amount of advertising that is permissible and so should be readily distinguishable from advertisements. In a guidance note on the application of Rule 9,13, published on 23 March 2009 in issue 130 of the Bulletin 1, we explained that when judging whether a television sponsorship credit is sufficiently distinct from advertising, Ofcom may take into account a number of factors. These include but are not limited to: What is the primary focus of the credits? Is the focus of the credits the sponsorship arrangement itself or the sponsor s product or service? What information about the sponsor s products/services is included in the credits? A brief description can help identify the sponsor. Detailed descriptions, references to positive attributes, or claims particularly those that are capable of objective substantiation about the sponsor s products/services (e.g. market leadership, health benefits, efficacy) are likely to result in credits breaching the Code. Do the credits contain content that is likely to encourage the viewer to contact the sponsor? Basic contact details (websites etc.) may be included but invitations to contact the sponsor or purchase goods/services are unacceptable. It is important for TV broadcasters always to remember that the main purpose of a sponsor credit is to create an association between the sponsor and the sponsored programme that enables viewers to identify the sponsorship arrangement; it is not the role of sponsor credits to act as advertising vehicles for products and services. Licensees must therefore exercise care to ensure that the general character of sponsor credits does not resemble that of advertising. Where, as here, the sponsoring product is itself an audiovisual work, extracts from it should be limited and subordinate to the purpose of sponsorship creating an 1 Issue 130 of the Bulletin is available at: http://www.ofcom.org.uk/tv/obb/prog_cb/obb130/ 21
association between the sponsor and the sponsored programme. Website addresses are acceptable in sponsor credits but, as with product names, must not contain claims or other information characteristic of advertisements. In Ofcom s view, both the general construction of the credits and the particular inclusion of the release date in the film s website address were in breach of Rule 9.13 because the overall impression given by the credits was of an advertising message. Breach of Rule 9.13 22
In Breach Maranam Muttuppulli Alla Global Tamil Vision, 2 November 2008, 19:00 Vanakathukuriyavarkal Global Tamil Vision, 27 November 2008, 17:10 Introduction Global Tamil Vision ( GTV ) is a satellite channel broadcasting content to an ethnic Tamil audience. Ofcom received a complaint concerning a programme broadcast by GTV on 2 November 2008 called Maranam Muttuppulli Alla. The complainant felt that the programme glorified the terrorist activities of the Liberation Tigers of Tamil Eelam ( LTTE ) and certain of its members. During its investigations, Ofcom also considered a further programme broadcast by the channel on 27 November 2008 called Vanakathukuriyavarkal. Ofcom commissioned independently-produced translations of both programmes ( the Programmes ), and noted various references to the activities and leaders of the LTTE, which is presently a proscribed terrorist organisation under the Terrorism Act 2000. This means that under current UK legislation, it is unlawful to be a member of the LTTE, to raise funds for it or to invite or encourage support for it. In summary, Ofcom noted the Programmes consisted of the following content: Maranam Muttuppulli Alla ( the 2 November Programme ) The 2 November Programme was broadcast as a memorial programme on the anniversary of the death of the LTTE political leader, S.P.Tamilchelvan, and of five other members of the LTTE. It included various interviews, speeches and songs that commemorated the life of Mr Tamilchelvan. Vanakathukuriyavarkal ( the 27 November Programme ) The 27 November Programme was broadcast on Heroes Day 1, and consisted of a series of songs, speeches and poems which commemorated the actions of the LTTE and its leader, Velupillai Prabhakaran. Ofcom considered whether the content of the Programmes could potentially be seen to glorify the activities of the LTTE, a proscribed terrorist organisation. Ofcom therefore wrote to GTV asking for its comments under the following Code Rule: 2.4 Programmes must not include material (whether in individual programmes or in programmes taken together), which, taking into account the context, condones or glamorises violent, dangerous or seriously antisocial behaviour and is likely to encourage others to copy such behaviour. Response In its response, GTV said that it broadcasts predominantly to the Sri Lankan Diaspora, and made a number of points about the Programmes. 1 Heroes Day is an annual commemoration by LTTE supporters to honour the deaths of members of the LTTE. 23
2 November Programme The broadcaster said that this programme, commemorating Mr Thamilchelvan s death, complied with the Code, and referred to the feelings of utter dismay and shock expressed in many world s leaders statements of hearing of Mr Thamilchelvan s demise. GTV added that all we attempted to do was pay tribute to a fondly remembered leader who dedicated his last five years to search for a politically negotiated settlement. GTV said that for the majority of its target audience, Sri Lankan Tamils: Mr Thamilchelvan was the last hope of achieving a lasting, politically negotiated solution to the ethnic problems facing Sri Lanka. According to the broadcaster, Mr Thamilchelvan was the head of the political wing of the LTTE, and that the Tamil community perceived him as a messenger of peace akin to Gerry Adams (former political leader of the IRA). Given this context, GTV decided to broadcast a programme commemorating the first anniversary of Mr Thamilchelvan s death, something that it had not done to remember other fallen cadres of the LTTE. GTV felt that it was necessary to remind our viewers of his political activities so that someone else will be encouraged to take over and continue his peace building efforts. However, in outlining Mr Thamilchelvan s activities, including as the Tamil chief negotiator in the peace summits, overseen by the Norwegian Government, GTV said the programme also mentioned five of his colleagues who died at the same time that he did. GTV also explained the background to two of the statements featured in the programme, which Ofcom had highlighted. First: We vow to take revenge in future for the death of these six brave soldiers, by showing the different faces the Tamils hurt by the Singhala domination. (All of the programme extracts included in this Finding are transcripts of the original translations provided to Ofcom by an independent external translation company). GTV said this statement was part of a poem used at Mr Thamilchelvan s funeral, which says that Mr Thamilchelvan and his six colleagues would not be forgotten and the work they will continue and this is the best form of revenge Tamils hurt by the Singhalese 2 can exact. Second: Never ever forget this. We have not buried our brother Tamilchelvan in the burial ground. We have buried him in our hearts and minds. We will rise! We will rise! Will rise as Tigers! Will become soldiers! Tamil Eelam will win! GTV said this statement was from a speech by a Tamil politician, Dr Seeman, speaking at Mr Tahmilchelvan s funeral, and was part of a section of the programme in which we tried to show our viewers how the Tamils felt all over the world about the news of Thamilchelvan s death. The broadcaster said that Dr Seeman s speech at Mr Thamilchelvan s funeral had to be seen in the context of a speech given prior to his, which had referred to the Chola Empire and its Tiger citizens 3, but had not been included in the 2 November Programme. Dr Seeman s comments therefore were referring to this previous, unbroadcast speech. GTV said it had not edited Dr Seeman s speech because he did not refer to [the] LTTE or its soldiers. 2 The majority ethnic group in Sri Lanka. 3 According to GTV, at Mr Thamilchalvan s funeral, a speaker prior to Dr Seeman had referred to the Chola empire, that had previously existed in Southern India, and its Tiger Citizens [who had] centuries ago, again and again rose from many setbacks and created a parallel of [the] Diaspora Tamils current mood to those of the Tiger citizenry of the then Chola Empire. 24